Untitled Texas Attorney General Opinion
GA-1008
| Tex. Att'y Gen. | Jul 2, 2013Background
- Texas Medical Board (Board) employs investigators whose duties may involve dangerous situations and is considering a resolution allowing investigators who hold concealed handgun licenses (CHLs) to carry concealed handguns while on duty.
- The Board does not intend to commission these investigators as peace officers.
- Occupations Code § 154.057(c) states investigators commissioned as peace officers may not carry a firearm or exercise arrest powers; the Board is concerned this language might be read to bar CHL-carry by non‑peace‑officer investigators.
- Request asks whether the Board may lawfully adopt such a resolution and whether adoption or investigator conduct would expose the Board to liability or whether immunity applies.
- Analysis focuses on statutory construction, the Texas Tort Claims Act (TCA) waiver provisions, and Government Code § 411.208 (immunity related to CHL licensing/actions).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board may allow on‑duty, non‑peace‑officer investigators with CHLs to carry concealed handguns | Board should be barred by § 154.057(c) language | § 154.057(c) applies only to investigators commissioned as peace officers; does not address CHL holders | Board may allow non‑peace‑officer investigators with CHLs to carry under CHL law |
| Whether § 154.057(c) prohibits CHL carry by non‑commissioned investigators | § 154.057(c) broadly prohibits investigators from carrying firearms | Statutory text limits prohibition to investigators commissioned as peace officers; earlier enactment predated CHL statutes | § 154.057(c) does not prohibit CHL carry by non‑peace‑officer investigators |
| Whether adopting a resolution/policy waives Board immunity under the TCA | Adopting a policy could expose Board to liability under TCA property/use waiver | Adoption of a resolution is a legislative function, which the TCA does not waive | Adoption of a policy (legislative act) does not waive Board immunity under the TCA |
| Whether Board is immune from suit/damages for investigator's handgun use (intentional vs negligent) | Section 411.208 or TCA will shield Board from suits for employee firearm use | TCA excludes intentional torts from waiver; negligent weapon use may be treated as use of property and waive immunity | Intentional misuse: TCA preserves immunity; negligent misuse: immunity could be waived under TCA depending on facts; § 411.208 might provide additional employer immunity but is untested and uncertain |
Key Cases Cited
- TGS‑NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (statutory construction—give effect to plain language absent absurdity)
- Valero Transmission Co. v. Hays Consol. Indep. Sch. Dist., 704 S.W.2d 857 (Tex. App.‑Austin 1985) (harmonize statutes to give effect to both)
- Lopez v. Trevino, 2 S.W.3d 472 (Tex. App.‑San Antonio 1999) (establishment of general policy is a legislative function)
- Tex. Dept. of Pub. Safety v. Petta, 44 S.W.3d 575 (Tex. 2001) (officer shooting constituted intentional conduct outside TCA waiver)
- City of Houston v. Vargas, 193 S.W.3d 143 (Tex. App.‑Houston [1st Dist.] 2006) (negligent use of a weapon can be treated as use of property under TCA, creating potential waiver)